In 2022, the Department of Agriculture updated the rule and procedure for the “Productions or 

Disclosure of Official Information in Legal Proceedings,” also commonly referred to as Touhy 

regulations. The update will require WS to update, Directive 4.145, Appearance as a Witness or 

Production of Documents in Judicial Proceedings for WS Employees, however WS is still 

interpreting the final rule and requirements. In the meantime, any legal requests for information

(subpoenas, summons, or documents) must notify their supervisor and contact the OSS Director 

or OSS Deputy Director for next steps and program concurrence. 

United States Department of Agriculture

Animal and Plant Health Inspection Service

WS Directive 4.145 10/11/12

APPEARANCE AS A WITNESS OR PRODUCTION OF DOCUMENTS IN JUDICIAL 

PROCEEDINGS FOR WS EMPLOYEES

1. PURPOSE

To provide guidelines for employees who have been requested or 

who have been issued a summons, subpoena, or other compulsory 

process, to appear as witnesses or to produce official APHIS, WS

documents or records in judicial or administrative proceedings.

2. REPLACEMENT HIGHLIGHTS

This directive revises WS Directive 4.145 dated 03/10/2004. 

3. DENOTATION

These guidelines only apply when the appearance and/or production 

of official APHIS, WS documents is in the employee's official 

capacity or arises out of or is related to his/her employment 

with the USDA. Other reasons for appearing as a witness such as 

1) an eyewitness to an accident not arising out of or related to 

one's employment with USDA, 2) jury duty, and, 3) Congressional 

requests or subpoenas for testimony or documents are not covered 

by these guidelines. Consult the Human Resources Desk Guide 

(HRDG), Subchapter 4630 – Absence and Leave, Section D – Excused 

Absence, Subsection a – Court, for guidelines covering witness 

service and the Office of the General Counsel (OGC) for inquiries 

regarding Congressional requests or subpoenas for testimony or 

documents.

4. POLICY

A WS employee may provide testimony or produce official documents

arising out of or related to their employment with USDA in 

judicial or administrative proceedings only when they have 
received specific authorization to do so in accordance with the 

application regulations (7 CFR 1.210-1.218) and these guidelines. 

A WS employee who provides testimony or produces official 

documents arising out of or related to their employment with USDA 

in violation of the application regulations shall be subject to 

disciplinary action. (7 CFR 1.218).

With any authorization to appear and/or produce documents

pursuant to these guidelines and the applicable regulations, a WS

employee will be appearing in his/her official capacity and will 

be entitled to administrative leave.

5. SPECIFIC APPEARANCES AND/OR PRODUCTION OF DOCUMENTS

a. APPEARANCE as a WITNESS or PRODUCTION of DOCUMENTS in a 

proceeding in which the UNITED STATES is a party (7 CFR 1.213 and 

1.216).

1. Appearance as a witness on behalf of the United States 

without issuance of a summons, subpoena, or other compulsory 

process for such appearance is permitted if appropriate 

notification has been given to the Director of OSS and after 

OSS has first consulted with OGC concerning such appearance.

2. Appearance on behalf of a party other than the United 

States in a proceeding in which the United States is a party

may be authorized: (1) if a valid subpoena, summons, or other 

compulsory process has been issued; or (2) upon request

without being served with a valid subpoena, summons, or other 

compulsory process, if, permission for such appearance has 

been given by the attorney or official representing the United 

States in the proceeding. An employee served with a subpoena,

summons, or other compulsory process, or otherwise requested 

to appear on behalf of another party shall promptly notify the 

Director of OSS in order to determine whether or not there are 

grounds to oppose such appearance or production.

b. APPEARANCE as a WITNESS on behalf of a party other than the 

UNITED STATES where the UNITED STATES is not a party (7 CFR 

1.214).

1. Notification of the Director of OSS and written 

authorization from the Administrator, with the concurrence of 

OGC is required when an WS employee is served with a valid 

summons, subpoena, or other compulsory process, to appear as a 

witness on behalf of a party other than the United States in a 

judicial or administrative hearing in which the United States 

is not a party. Such authorization and concurrence will be 

based upon a determination that such appearance is in the 

interest of the USDA.
2. Notification of the Director of OSS, written authorization 

from the Administrator and approved by the Under Secretary for 

Marketing and Regulatory Programs, Marketing and Inspection 

Services and OGC is required when an WS employee is not served 

with a valid summons, subpoena, or other compulsory process, 

and is requested to appear as a witness on behalf of a party 

other than the United States in a judicial or administrative 

hearing in which the United States is not a party. Such 

authorization and approval will be based upon a determination 

that such appearance is in the interest of USDA.

3. When the summons, subpoena, or other compulsory process was 

validly issued and served, but the appearance is not 

authorized or approved as required in 5(b)(1) above, the 

employee shall appear at the stated time and place, produce a 

copy of the official regulations (7 CFR 1.210 - 1.218) and 

respectfully decline to provide any testimony.

c. SUBPOENAS for APHIS-WS DOCUMENTS or RECORDS where the UNITED 

STATES is not a party (7 CFR 1.215).

1. Duces tecum subpoenas for APHIS-WS documents or records in 

judicial or administrative hearings in which the United States 

is not a party shall be considered as requests under the 

Freedom of Information Act (FOIA) and shall be handled 

pursuant to the rules governing public disclosure (see WS

Directive 4.135, Requests for Information).

2. If an employee is served with a duces tecum subpoena and 

compelled to appear, the employee must notify the Director of

OSS. After consultation with OGC, the employee shall appear 

and respectfully decline to produce the records or documents 

on the grounds that the regulations (7 CFR 1.215) prohibit 

such production and state that the production will be done in

accordance with the FOIA.

6. WITNESS FEES AND TRAVEL EXPENSES (7 CFR 1.217) 

a. Any employee who is a witness on behalf of the United States 

in a judicial or administrative proceeding in an official 

capacity, or arising out of or related to his/her employment with 

USDA, is entitled to travel expenses in accordance with the 

Agriculture Travel Regulations. No witness fees can be received 

for such appearance or production.

b. Any employee who is a witness on behalf of a party other than 

the United States in a judicial or administrative proceeding in 

an official capacity or arising out of or related to his/her 

employment with USDA is entitled to travel expenses in accordance 

with the Agriculture Travel Regulations to the extent that 

expenses are not paid by the court, agency, official, or party 

compelling or requesting his/her appearance. The employee is 
required to collect all fees authorized for such appearance or 

production and remit them to the Director, OSS (made payable to 

the USDA).

7. PROCEDURE

When an employee receives a court order, subpoena, summons, or 

request to testify or produce documents in an official capacity 

or arising out of or related to his/her employment with USDA, it 

is usually necessary to obtain approval from the Administrator 

and OGC prior to testifying or producing documents. The 

following procedure is required:

STEPS ACTION

1. Employee immediately notifies supervisor of the 

request, subpoena, summons, or order to testify and/or 

to produce documents.

2. Supervisor obtains from the employee the following 

information and submits the information to the 

Director, OSS:

a. Name, title, organizational address, and telephone

number of the employee upon whom the request was made 

or served.

b. Date employee received the request or service and 

nature of the order compelling WS employee appearance 

(i.e., court order, subpoena, summons, verbal or other 

manner).

c. A copy of the subpoena, summons, or court order. 

d. Name(s) of court or parties involved and a brief 

description of the matter being contested.

e. Nature of the requested testimony or records.

f. Why WS appearance is in the best interest of the 

USDA (refer to MOU's, cooperative agreements, WS legal 

authority, other).

g. A description or copy of the material the employee 

has been asked or anticipates being asked to produce 

or disclose.

h. Any incorrect statements or misspellings in the 

request.
i. Any fees involved with the request, broken down 

according to travel expenses, daily fees, and total.

j. The employee's role in and/or familiarity with or 

knowledge of such request.

3. The Director, OSS submits a formal, written request, 

from the Deputy Administrator to OGC.

4. OGC notifies the Deputy Administrator of its 

concurrence or non-concurrence regarding the employee. 

The Director, OSS then notifies the supervisor and/or 

the employee, of the approval or non-approval for 

his/her appearance or production of documents/records.

8. REFERENCES

WS Directive 4.135, Requests for Information (10/07/05).

Hyperlink: 

http://www.aphis.usda.gov/wildlife_damage/ws_dir_ch4.shtml

Human Resource Desk Guide, Subchapter 4630 – Absence and Leave, 

Section D – Excused Absence, Subsection a – Court (Issued 

8/97; Updated 2/12).

Hyperlink: 

http://www.aphis.usda.gov/mrpbs/publications/hr_desk_guide/463

0/4630sdsa.shtml

7 CFR Subtitle A, Part 1, Subpart K 1.212-1.218 Appearance of 

USDA Employees as Witnesses in Judicial or Administrative 

Proceedings 340 U.S. 464, (1950)., Touhy v. Ragen.

Hyperlink: 

http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectio

nCode=CFR&searchPath=Title+7&oldPath=Title+7&isCollapsed=true&

selectedYearFrom=2012&ycord=0

William H. Clay

Deputy Administrator